Premarital and Marital Property Agreements are contracts between you and your spouse or spouse-to-be that can have a great deal of importance. A signed, written agreement between the two of you that allocates debts and property into either the community or separate property column will determine how each piece of property is treated if your marriage ends in a divorce. We hear about premarital agreements or "prenuptial" agreements in the media when wealthy, famous people get married. However, these sorts of agreements are not just for the uber-wealthy.
A premarital agreement will go into effect the day that your marriage begins. Most people that enter into these agreements do so to limit the amount of property or debt the community estate will accumulate throughout their marriage. On the other hand, if you and your spouse were to enter into a similar agreement during your marriage, it would be known as a marital property agreement. Essentially both documents are the same; it is just a matter of when the contract comes into being- before or after the marriage has started.
How a premarital or marital property agreement works in the context of a divorce is that whichever spouse files for the divorce will reference the property agreement within the Original Petition for Divorce. When it comes time for the final orders of your divorce to be filed after your case, a copy of the agreement will typically be attached to those orders as an exhibit for reference purposes.
How is community property divided in a divorce?
If you and your spouse have not entered into a premarital or marital property agreement, then it is the judge's responsibility to divide your community property and debts. That is, the judge must divide the property if you and your spouse cannot agree to do so in mediation or an informal negotiation settlement conversation. Keep in mind that although Texas is a community property state, debt and property do not have to be divided 50/50 between you and your spouse. Factors like the size of each of your separate estates, fault in the breakup of the marriage as well as your income will weigh on a judge if they must divide your community estate.
In many cases, the community property that you and your spouse own cannot be divided straight down the middle. Let's consider the most commonly divided large item of property that you and your spouse could have: the marital house. The easiest route that you and your spouse could go would be to sell the house and split up the equity that you would get after the mortgage and other costs of the sale are taken care of. There is a relatively little hassle in doing this, and it allows both you and your spouse to wipe your hands clean of this asset and move on.
However, that is all true when you take the sale of the house in a vacuum. Consider what could change if you and your spouse have a child together. In many cases, a judge will award the family house to whichever parent is named the primary caretaker of your child. It would have to be shown that this parent can afford the mortgage payments on their own. The reason a judge would order this would be to allow your child to have some degree of stability and consistency by remaining in the family home after the divorce concludes.
If you are the parent who is not awarded the right to be the primary caretaker of your child, then you may be wondering where this leaves you. Would a judge order you to leave the house, not award you primary responsibility for your child, and then not allow you to gain any monetary benefit from the house? The answer to that question is no.
A judge will often order that the house be sold as soon as your child turns 18, and the sale proceeds will be split between you and your ex-spouse at that time. Or, you may be able to exchange any equity in the house for another piece of property in the community estate that could equal the value. For example, if a classic car was purchased during the marriage that roughly equals your equity position in the home, that vehicle could be awarded to you.
Remember that while a judge will do their best to divide the community estate equitably, no judge is perfect. It is an impossible task to ask a judge to learn your family dynamics well enough throughout a one or two-day trial to do an excellent job of dividing the community estate. This is why we encourage people like yourself to do everything they can to attempt to settle your case in mediation rather than leave the decision up to a judge.
Will you have to pay spousal maintenance in your divorce?
Simply put, spousal maintenance is a payment that is ordered by a judge to be made from your future income to support your ex-spouse after your divorce has concluded. Although it is not a term that is officially used in Texas, many people know of this relationship as "alimony." You and your spouse can agree to some degree of spousal maintenance in mediation, so don't think you have to see a judge if you want to push for spousal maintenance payments.
Spousal maintenance is typically ordered towards the benefit of spouses that lack sufficient property to provide for their minimum basic needs. The key is that you and your spouse need to have been married for at least ten years in most cases for a judge to be able to order that you receive spousal maintenance. Other circumstances that could lead a judge to request that you receive spousal maintenance are if your spouse has engaged in acts of family violence against you in the two years before your divorce or you or your child have a disability that negates your ability to work outside of your home.
How much can spousal maintenance be awarded in your divorce?
A judge has limits to how much spousal maintenance can be awarded in your case. Additionally, a judge can only order that spousal maintenance payments be paid for specific periods depending upon the length of your marriage. Your judge will need to determine how much money you would need to meet those minimum, basic needs that we just finished discussing. Either way, a judge cannot order that you receive more than $5,000 per month or 20% of your spouse's gross monthly income in spousal maintenance. Your spousal maintenance award will be limited to specific periods unless you can present evidence that shows due to an incapacitating injury or physical impairment that you would be unable to earn an income to support yourself.
How issues related to your child can impact your divorce
Your Final Decree of Divorce will be the final order issued in your divorce case. These are the marching orders that you and your ex-spouse will need to follow until you come back and have those orders changed/modified if you do that at all. Part of those final orders will be a section covering a Parenting plan for you, your ex-spouse, and your children. The conservatorship designation of both you and your ex-spouse, a visitation schedule, child support, medical support, and any other issues relevant to your family will be detailed in this section.
The reason why so much detail is put into a parenting plan is to, in theory, minimize the risk that you and your ex-spouse have as far as disagreements and animosity that surrounds co-parenting in your post-divorce life. Of course, this may not be the case for you and your ex-spouse, but the intention is to lay out a clear-cut path for your parenting to take in hopes of creating some sense of post-divorce harmony. If issues arise amid that post-divorce life, you can take steps to correct those issues- more on that in a later blog post.
How long does the parenting plan/child support plan go into effect?
In Texas, a family court can enforce orders regarding your child until that child graduates from high school or turns 18- whichever occurs later. Suppose your child has a physical or mental disability that requires that they remain in the home for a more extended period. In that case, the court will likely continue in its authority to enforce child support, custody, and visitation orders until a later date.
When we talk about custody of a child in Texas, we talk about who can get physical possession of your child and on what basis. The word "custody" actually does not come up in the Texas Family Code. Still, it is a term used so much in our society that everyone involved uses it with regularity. For the most part, you and your spouse will share custody rights and duties associated with your child.
If it comes down to a trial, the judge will need to decide about custody of your child that is in that child's best interests. A joint managing conservatorship is one where you and your spouse share the rights and duties of raising your child consistently. The only rights that will differ significantly are the rights to determine your child's primary residence and the right to receive child support. Only one of you can do those things associated with raising your child.
In rare instances, either you or your ex-spouse may be named the sole managing conservator of your child. If there is a history within your family of family violence, child abuse/neglect, or protective order has been issued against either of you, then the sole managing conservator designation would be appropriate. The sole managing conservator can be in physical possession of your child much more and holds more of the rights and duties associated with parenting your child daily.
A court will also look to whether or not you or your spouse have been absent for long periods from your child's life or if there has been a great deal of conflict in your relationship with your child and your spouse. The parent who is not designated the sole managing conservator of your child does not lose all of their rights, but their rights are curtailed because it is believed that doing so is in your child's best interests. The sole managing conservator has explicitly special rights when making decisions for your child concerning educational and medical issues.
Questions about divorce in Texas? Contact the Law Office of Bryan Fagan
We were able to cover a lot of information about divorce in Texas today. If you would like to ask us any questions or need us to clarify any of the points we made, please do not hesitate to contact the Law Office of Bryan Fagan today. We offer free of charge consultations six days a week with our licensed family law attorneys. These consultations are an excellent opportunity to ask questions and receive feedback about important subjects to you and your family.
Our attorneys and staff take a great deal of pride in working with clients from across our area in the courtrooms of southeast Texas. We aim to provide an excellent representation of our clients while maintaining a strong sense of integrity and customer service. Contact us today to find out more about how we can assist you in your family law case.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: "16 Steps to Help You Plan & Prepare for Your Texas Divorce"
If you want to know more about how to prepare, CLICK the button below to get your FREE E-book: "13 Dirty Tricks to Watch Out For in Your Texas Divorce, and How to Counter Them" Today!"
Other Articles you may be interested in regarding Houston Court Local Rules:
- 247TH Judicial District Local Rules
- 246TH Judicial District Local Rules
- Harris County, Texas Family Law Court - 257TH Judicial District Local Rules
- Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
- What Wikipedia Can't Tell you About Texas Divorce and Marital Property Division
- Texas Divorce Property Division Enforcement
- Separate Property in a Texas Divorce?
- Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
- Is Social Security Considered Separate Property in a Texas Divorce
- Distinguishing between Community and Separate Property in Texas divorces